Commissioner and Secretry to Government of Hayana vs Pale Ram and others

S.S. Sudhalkar, J.—This writ petition has been filed by the employer challenging the award of the Labour Court vide which respondent No. 1 was ordered to be reinstated in service with continuity of service and full back wages.

Respondent No. 1 had raised a demand that he was working as daily wager in the office of petitioner No. 2 continuously since 1.12.1977. On 13.5.1987. Technical Assistant Sh. Kanwar Singh Chhikara terminated his services and employed his nephew Raj Singh in place of respondent No. 1. He made representations on 25.5.1987 and 5.6.1987. He was thereafter given employment on 3.8.1987 but again he was terminated w.e.f. 21.8.1987. On 21.1.1989, he preferred Civil Writ Petition No. 873 of 1989 in this Court. There was stand in the written statement by the petitioner that respondentNo. 1 had voluntarily left the job. Respondent No. 1 thereafter withdrew the writ petition for availing his remedy in the Civil Court on 2.11.1992. Demand was raised on 22.3.1993.

The conteniions made in the petition were denied before the Labour Court and it was contended that respondent No. 1 left the job on 20.8.1987 abruptly on his own and he was not terminated by Sh. Kanwar Singh Chhikara, to employ his nephew but one Raj Singh was certainly employed to meet the work in the months of May and August, 1987. It was contended that both Raj Singh and respondent No. I had remained employed simultaneously but during the month of July, 1987, respondent No. 1 could not be employed as he did not become available and only one Raj Singh was employed for the month of July, 1997. Even in the month of August, 1987, respondent No. 1 did not become available.

The LabourCourt did not accept the plea of the petitioner that respondent No. 1 had himself left the job. It has referred to the deposition of MW-1 who has stated that as long as respondent No. 1 remained in service. Raj Singh was not employed at all. It has been held that this statement is in contradiction with the written statement and in the months of May and August. 1987, both Raj Singh and respondent No. ! remained employed simultaneously. The Labour Court has also considered that as per the attendance register Ex. WW-1/4, in July, 1987 Raj Singh had been shown to have worked for 15 days and respondent No.1 for 11 days only in April, 1987. Respondent No. 1 has been shown to have worked for 8 days and Raj Singh 17 days. The Labour Court has also held that there is no credible evidence that respondent No. 1 leitthe service himself. It is considered fact that respondent No. 2 had moved an application to the Director of Agriculture Plant against the termination of his service simply to accommodate Raj Singh and Ex. WW-1/2 is similar application. It has further considered the fact that the enquiry was got held by the Director to find the truth and he had to be reinstated before he was terminated again. Considering all these aspects. Labour Court has held that the plea that respondent No. 1 left the job voluntarily cannot be accepted. We find no infirmity in the finding.

Counsel for the petitioner has cited the case of Stale of H.P. v. Ashwani Kumar AIR 1997 SC 352 : 1996(2) SCT 509 (SC). In that case, it has been held that termination of service on closure of project is proper and no vested right is created in the temporary employees and direction in that case by the High Court to consider them at other places, was held to be not proper. This judgment wilt not apply to the facts of the present case as it is the case of the petitioner that respondent No. 1 has voluntarily left the job. It is not a case of dis-engagement on completion of the project.

It has been pleaded that the Agriculture department is not an "industry". In the case of State Hary-ana v. Jai Kishan and another 2000(3) R.S.J. 42 : 2000(2) SCT 876 (P&H)(DB), the D.B. of this Court rejected the contention that Irrigation department of the State did not fall within the term "industry" as defined u/s 2(j) of the Act. The D.B. considered the views taken by the Supreme Court in the case of General Manager, Telecom v. S. Srinivasan Rao 1998(1) RSJ SC 43 : 1998(1) SCT 230 (SC). It was a judgment of three Judges which overruled the view taken by two Judges in an earlier case. Considering the judgment of three Judges of the Supreme Court, the D.B. in Jai Kishan''s case held as under : "In our opinion, what the three Judges Bench of the Supreme Court has said about the judgment of the two Judges Bench in the context of Telecommunication Department can appropriately be applied to a case like the present one because, as mentioned hereinabove, the petitioner did not produce any evidence before the Labour Court to prove that the activities of the Irrigation Depart- ment are akin to or an integral part of the sovereign functions of the State".

Nothing has been shown in this case as to what are the functions, which are carried on by the petitioner department. Therefore, it would not be possible to hold that the petitioner department is not an "industry".

In view of the above reasons, the reinstatement ordered by the Labour Court does not deserve any inference.

Counsel for the petitioner further argued that the Labour Court has erred in awarding full back wages. Counsel has further argued that the Labour Court has given direction to recover full back wages and costs from the salary and other property of Sh. Kanwar Singh Chhikara who was held to be responsible for illegally terminating respondent No. 1, is not proper.

So far as the back wages are concerned, we find no reason to interfere with the award. The petitioner has agitated, filed writ petition, but because of technical grounds, he was required to withdraw and approach the Labour Court. It is not shown as to why respondent No. 1 had to be terminated and his place being filled up by one Raj Singh. So far as the recovery of the amount from Kanwar Singh Chhikara is concerned, we find it proper to modify the award of the Labour Court. Kanwar Singh Chhikara was not a party before the Labour Court. We, therefore, modify the direction of recovery from Kanwar Singh Chhikara that the petitioners shall give anoticeto Shri Kanwar Singh Chhikara as to why the amount should not be recovered from him and then take decision after giving him an opportunity of being heard if at all this proved for recovery the amount from him.

This writ petition stands dismissed with the above directions.

Petition dismissed.